Trial observation: report on the trial of Kurdish Lawyers

Tony Fisher, member of the Law Society Human Rights Committee, reports back from Turkey where he took part in an international delegation to observe a mass trial of lawyers.

Background

In November 2011 mass arrests of some 46 Kurdish and Turkish lawyers took place in raids carried out simultaneously in many Turkish cities and provinces.

The arrest of these lawyers is linked with many thousands of other arrests which have taken place, mainly of Kurdish Turkish nationals, since 2009. Most of those arrested have had some connection with a Kurdish organisation established by Abdullah Ocalan, namely the union of Communities in Kurdestan (otherwise known as the KCK). The trials of these individuals, including the lawyers trials, have become known as the KCK trials. In all some 8,000 defendants have been charged with terrorist offences. They include politicians, journalists, academics and other human rights defenders as well as the lawyers.

Mr Ocalan is a Kurdish politician who is seen by many as the natural leader of the Kurdish community in Turkey. He is currently held in isolation on an island without access to legal counsel having been convicted on terrorist charges in Turkey.

The lawyers are charged under anti-terror legislation in Turkey with being members of an illegal organisation. All of the defendants have at some time or other acted in a representative fashion for Mr Ocalan and are accused of passing on his orders as well as forming part of an illegal leadership committee linked with the PKK.

Information obtained from the European Association of Lawyers for Democracy and World Human Rights (ELDH) suggests that the charges are based on evidence collated by the Turkish authorities as a result of their practice since 2005 of routinely recording all meetings between Mr Ocalan and his legal advisers. Recordings have been made in in both video and audio format. Information received from those acting for the accused at the hearing on 6th November 2012 also suggests that additional evidence has been obtained as a result of covert recording of telephone conversations and covert “bugging” of the offices and homes of the defendants. All of the charges are denied by the Defendants, most of whom were arrested and charged many years after they had ceased to have contact with Mr Ocalan.

A hearing took place in the Special Istanbul Criminal Court in July 2012 which was adjourned for further hearing on 6th November 2012. Some of the defendants were granted bail but the majority were remanded in custody in Koaeli prison. This is a very large prison approximately 90 minutes drive from the centre of Istanbul. It incorporates a court (Silivri Court) where the hearing on 6th November took place.

The wider political background

The prosecution of the lawyers cannot be understood without some information concerning the wider political context in which the charges have been laid.

The Kurdish community within Turkey consists of some 20 million people. They form part of a wider community of Kurds who have traditionally been concentrated in south east Turkey, Northern Iraq, and Syria, an area referred to generically by the Kurdish people as Kurdistan. The PKK are a terrorist organisation whose stated aim is to establish an independent Kurdistan. Kurdish political parties within Turkey have also continuously campaigned for respect for the Kurdish culture and language over many decades. The “war” between the state authorities in Turkey and the PKK has raged with varying intensity since the 1980’s and has seen many thousands of casualties on both sides. During the 1990’s the state was guilty of many atrocities in south east Turkey including the destruction of over 3,000 villages and the resultant internal migration of many millions of Kurds to other parts of Turkey. These atrocities led to a substantial number of applications to the European Court of Human Rights during the 1990’s and many judgements against Turkey involving the payment of substantial damages to victims of torture, arbitrary killing, unlawful detention and destruction of property. Many millions of Kurds have been “caught between two fires” between the state security forces and the PKK. The tensions between the demands of the Kurdish communities for respect for the Kurdish culture and language, and the Turkish state’s determination to secure the indivisibility of the state have not been resolved. The Kurdish problem remains one of the greatest challenges faced by Turkey in its efforts to become an effective modern democracy with appropriate respect for human rights, due process, and the rule of law.

Some progress has been made in terms of legislative protection for those in custody (although poorly implemented). Much of the effort made has been driven by Turkey’s desire to join the EU. However, efforts to broker a lasting resolution of the Kurdish issues have failed. Most recently when the Turkish authorities withdrew from discussions with the PKK in Oslo in 2010. By then Mr Ocalan had been completely isolated and the current spate of prosecutions had begun.

In September 2012 many of those detained as a result of the arrests leading to the KTC trials (including journalists, academics and other human rights defenders, but excluding the lawyers in this case) went on hunger strike in pursuance of demands that greater respect be given to the Kurdish language in the education system, that all defendants in all trials be given the right to present their cases in Kurdish, and for the release of Mr Ocalan to resume attempts to broker a peace process. The hunger strike started on the same date that a military coup took place in Turkey in 1980. At the time of the hearing some of those on hunger strike were alleged to be close to death.

Legal issues in the trial of the lawyers

Many concerns have been expressed in relation to the fairness of the trial against the lawyers which has almost universally been perceived as politically motivated. A summary of these concerns is set out below

1. Whatever the merits of the charges or the culpability of individual lawyers, the methods used to collate evidence are clearly in breach of fundamental elements of legal professional privilege. Routine recording of privileged interviews is perhaps the most fundamental breach of the lawyer/client relationship.

2. Although no English translation of the indictment has been obtained it is understood that it runs to some 1,000 pages and complaints have been made that insufficient access has been provided to those lawyers who are acting for the defendants to the evidence on the basis of which the indictment has been brought.

3. Indication has been given that before a prosecution against a lawyer is taken in Turkey there is a requirement under domestic legislation (the Turkish Lawyers Act 1927) that the consent of the Ministry of Justice be obtained. It is understood that no such consent has been given which raises the question as to whether the proceedings themselves should be regarded as being null and void.

4. Certain defendants have been granted bail subject to reporting conditions yet the majority (whose situation appears comparable to those on bail) have had their applications for bail consistently refused. There appears to be no objective justification for this.

Without further access to the evidence itself and more detailed interviews with the defendants and their lawyers it is difficult to be more precise with regard to any further specific matters of concern with the trial process. The fact that all of the defendants were arrested at the same time, some many years after all of the evidence on the basis of which they were charged had been finalised obviously raises suspicions that the prosecutions are politically motivated however.

The hearing on 6th November 2012

The hearing at the Silivri court outside Istanbul took place during the morning and afternoon of 6th November. A delegation of some 60 lawyers, in addition to those Turkish lawyers representing the defendants, attended. There were representatives from the Bar Associations of Paris and many other parts of France, Dusseldorf, the Netherlands, Sweden and Greece as well as a delegation from the UK which consisted of a Kurdish solicitor practising in London and three barristers from Tooks Court. Another barrister from Doughty Street chambers was present to represent the International Bar Association. I went as representative of the Law Society of England and Wales. Many relatives of the accused were also present. Some lawyers also represented individual NGO’s

The hearing took place under conditions of heavy security. As well as Gendarmes some 50 or so riot police in full body armour accompanied by a water cannon were stationed outside the court. Many of these also entered the court building when the hearing took place. There was insufficient room within the courtroom itself to house all of the representing lawyers, the observers, and the family members. An anteroom had been prepared with a video link to the court room and all of the relatives of the accused were kept within this room during the morning session.

After the hearing commenced a series of speeches were made by defence lawyers all with the same or a similar theme, namely that the defendants should be granted permission to conduct their defence in Kurdish. Variations on this theme included allegations that unless the judge consented to these applications the court would be responsible for the death of the hunger strikers. It was indicated that the defendants would commence a hunger strike on the day of the hearing in support of their demands. The judge attempted to adjourn that debate and encouraged the advocates to proceed with the defence of the charges. Further speeches followed on the same theme, with one advocate claiming that the arrest of the lawyers immediately followed “on the orders of the prime minister” after the Oslo peace talks failed. The judge was encouraged to “be brave and change the course of history.”

After hearing these arguments the trial was adjourned for lunch. On its resumption further speeches again returned to the issue of the use of the Kurdish language before the judge pronounced that the application was rejected on the basis that all of the defendants spoke Turkish (and had made their initial statements to the authorities in Turkish) and did not therefore require or need to address the court in Kurdish. At this point all of the defending lawyers left the court indicating that they would take no further part in the proceedings. Loud cheers were heard from family members in the anteroom as the lawyers left the court and the proceedings were adjourned. During the adjournment family members were allowed into the court for emotional reunions with the accused before the court resumed.

Each defendant was then asked to come forward to identify themselves, confirm the date of their arrest and confirm their statements. Each in turn requested permission to address the court in Kurdish (which was refused and indeed the microphone was switched off).

At the end of this process (after a further short adjournment) the case was adjourned until 3rd January 2013 and all those who were in custody were remanded in custody again. Those on bail had their reporting restrictions relaxed so that they will be required to report monthly rather than weekly.

Commentary

Unknown to the international delegation at the time of the hearing the Turkish government had made an announcement on the day prior to the hearing that it would introduce further legislation addressing the issue of the use of languages other than Turkish in court proceedings. The detail of that legislation is not yet known.

What is clear however is that the trial of the lawyers is becoming ever more deeply politicised and the defendants and their lawyers are part of this process. There remains an important monitoring role for the international legal community, especially now that the lawyers in custody are on hunger strike.

The trial will resume on 3rd January 2013

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